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Shabbat Parashat Ki Tisa 5780

P'ninat Mishpat: Return of Borrowed Pre-School Items 1

(based on ruling 71104 of the Eretz Hemdah-Gazit Rabbinical Courts)

Part 1

Case: The defendant (=def) runs a religious pre-school program in an Israeli town and started employing the plaintiff’s (=pl) daughter-in-law (=dil) a few years ago. Shortly thereafter, pl gave several thousand shekels worth of pre-school accessories (tables, books, toys, etc.) in a few installments. A year ago, dil stopped working at the pre-school, of her own accord. Pl demanded the items back, claiming that she had stated it was a loan. Def refused but wrote a letter acknowledging the items belong to pl with the promise to return it to her if a relative of pl opens a pre-school program. Months later, pl told def that pl’s daughter is doing so, and def sent her some of the items. Pl claimed it was too little, too late (because of the lack of materials, her daughter stopped her plans), and many of the items have been seriously damaged. Pl now wants 30,000 shekels rather than a return of the materials. Def contends that pl did not stipulate that she might want the materials back; if she would have, def would not have taken them because it caused her to throw out old, still usable materials. She had every reason to believe it was a donation to an altruistic religious organization close to pl’s heart. The letter admitting the items were pl’s was due to a threat, right before the beginning of the school year, that pl would come to take them.   

 

Ruling: Given the factual disagreement (and def’s lack of certainty in the details) whether there was a stipulation early on about the materials being a loan, what would the halacha be if pl intended for a loan without sufficiently verbalizing? The general rule is that devarim shebalev (transactions done without a spoken intention) are treated as unconditional transactions (Kiddushin 49b).  

There is a machloket among Rishonim and Acharonim as to whether the reason that devarim shebalev do not count is that he is not believed that he intended something that went unspoken, or whether such an intention is fundamentally unimpactful for the transaction even if we there was such an intention. The more accepted opinion is like the Chelkat Mechokek (42:4) that even if we believe the person harboring the thoughts, it does not change the matter. However, the S’ma (207:4) is among the many who posit that the above is regarding a sale, but regarding a present, we follow the thought process of the one giving.

In this case, def says that she trusts pl’s son (dil’s husband), and he says that pl told him relatively soon after giving the items that they were just on loan. On the other hand, since there was an expectation that dil would be staying at the job for a long time, there is some logic to assume that if indeed pl did not say anything to def at the time of the presentation, it was a full present. Based on this situation of doubt, strict justice would not allow taking money or property from def.

We will continue next time with other elements of the dispute.

 

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Dedication

We daven for a complete and speedy refuah for:

 

Nir Rephael ben Rachel Bracha
Refael Yitchak ben Chana

Netanel Ilan ben Sheina Tzipora

Netanel ben Sarah Zehava

Meira bat Esther

Yair Menachem ben Yehudit Chana

Rivka Reena bat Gruna Natna

Lillian bat Fortune

Yafa bat Rachel Yente

Eliezer Yosef ben Chana Liba

Ro'i Moshe Elchanan ben Gina Devra

Reizel Anya bat Devora

Esther Michal bat Gitel

Yehudit Sarah bat Rachel

 

Together with all cholei Yisrael

 

Hemdat Yamim is dedicated

to the memory of:

those who fell in wars

for our homeland

 

Eretz Hemdah's beloved friends

and Members of

Eretz Hemdah's Amutah

 

Rav Shlomo Merzel z”l
Iyar 10 5771

 

Rav Reuven Aberman z"l

Tishrei 9     5776

 

Mr. Shmuel Shemesh  z"l
Sivan 17 5774

 

R' Eliyahu Carmel z"l

Rav Carmel's father

Iyar 8    5776

 

Mrs. Sara Wengrowsky

bat R’ Moshe Zev a”h.

Tamuz 10       5774

 

Rav Asher Wasserteil z"l

Kislev 9  5769

 

R'  Meir ben

Yechezkel Shraga Brachfeld z"l

&

Mrs. Sara Brachfeld z"l

Tevet 16 5780

  

R'  Yaakov ben Abraham & Aisha

and

Chana bat Yaish & Simcha

Sebbag, z"l

 

Rav Yisrael Rozen z"l
Cheshvan 13 5778

 

Rav Benzion Grossman z"l
Tamuz 23    5777

 

Rav Moshe Zvi (Milton)

Polin z"l

Tamuz 19     5778

 

R' Abraham Klein z"l

Iyar 18 5779

 

 R' Gershon (George)

ben

Chayim HaCohen Kaplan

z"l

Adar II 6

 

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is endowed by Les & Ethel Sutker
of Chicago, Illinois
in loving memory of
Max and Mary Sutker
and
Louis and Lillian Klein, z”l

 

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